BABY Vs. DEPUTY SUPERINTENDENT OF POLICE ATTINGAL

JUDGEMENT

(1.) The petitioner is before us claiming police protection against the illegal acts perpetrated by respondents 3, 4 and 5. The party respondents are said to be constantly interfering with the peaceful possession of a property owned by the petitioner and that too by repeatedly flouting the orders of the Civil Court. The petitioner purchased the subject property as per Ext. P1 title deed. The tax receipt is seen at Ext. P2 and the Possession Certificate is seen at Ext. P3.

(2.) The 3rd respondent filed a suit [O.S. No. 443 of 2007] claiming title over the property. The petitioner had filed a counter claim in the above suit. Even when the suit was pending there was an injunction order in favour of the petitioner and by Ext. P7, the learned Munsiff had directed police protection to enable the petitioner to take yield from Plaint B schedule property. Eventually by Ext. P4 ex parte decree dated 17.10.2012, the suit was dismissed and the counter claim allowed. The petitioner approached the Execution Court. The 4th respondent, the 3rd respondent's husband, filed an application for dismissing the execution petition on the ground that he was living in the neighbouring property (A Schedule); over which he asserted title and contented that he is not a party to the suit and he is estranged from his wife who is the judgment debtor. By Ext. P5 order dated 18.03.2017, it was found that the 4th respondent had not produced any materials to show independent possession over Plaint A schedule property; which was actually owned by his wife. The bone of contention was with respect to B Schedule property as we saw herein before; over which the petitioner now holds a valid decree, on the basis of her title and even enjoyed an injunction in her favour during the pendency of the suit and the counter claim. The contention raised by the 4th respondent that he was estranged from his wife was specifically negatived. The application to dismiss the Execution Petition on the ground of separate possession as claimed by the husband of the 3rd respondent was declined by the Execution Court. An appeal filed by the 4th respondent also stood dismissed for non-prosecution, as is seen from Ext. P6.

(3.) Later the learned Munsiff, in the Execution Petition deputed a Commissioner to put up a barbed fencing along the boundary of the properties of the decree holder and judgment debtor. The 3rd respondent filed OP(C) No. 2738 of 2016 before this Court, primarily contending that the prayer for construction of fencing was beyond the scope of the decree. Ext. P8 order dated 01.12.2016 was passed in the OP(C), which found that the rejection of the objection filed by the 3rd respondent, by the Execution Court, was proper. It was found that there was no illegality committed by the court below warranting interference, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. In fact, this Court had specifically found that "it can only be presumed that the boundary has been fixed by the Court below and in such cases, the boundary wall can also be constructed with the help of the Court by filing an execution petition" (sic). The respondents however continued their illegal activities on the basis of the claim which was rejected by the Civil Court. Since repeated complaints before the Police evoked no response, the Munsiff's Court was again approached. The learned Munsiff passed an order based on which Ext. P11 communication dated 21.02.2018 for police assistance was issued. Even when the fencing was constructed under police assistance, it was demolished is the specific contention taken by the petitioner.